EX-10 3 ex10_2.txt AMENDMENT NO. 2 TO THE AAH STOCKHOLDERS AGREEMENT Amendment No. 2 to the AAH Holdings Corporation Stockholders Agreement This Amendment No. 2, dated as of December 21, 2005, amends the AAH Holdings Corporation Stockholders Agreement dated as of April 30, 2004, first amended May 24, 2004 (the "Stockholders Agreement") by and among (i) AAH Holdings Corporation, a Delaware corporation (the "Company"), and (ii) the stockholders listed on the signature pages thereto (the "Stockholders"). Terms defined in the Stockholders Agreement and not otherwise defined herein are used herein as so defined. WHEREAS, on April 30, 2004 the Stockholders and the Company entered into the Stockholders Agreement for the purpose of regulating certain relationships of the Stockholders with regard to the Company and certain restrictions on the Common Stock and other equity securities owned by the Stockholders; WHEREAS, the Stockholders Agreement was amended on May 24, 2005 to allow certain Permitted Transfers (as defined therein); and WHEREAS, pursuant to Section 4.3 of the Stockholders Agreement, the Stockholders Agreement may be amended in certain respects as set forth herein. NOW, THEREFORE, the Stockholders Agreement is hereby amended as follows: 1. Take Along. The following paragraph is added immediately following Section 2.4(c): "(d) In the event the consideration to be paid in exchange for Common Stock Equivalents in a Company Sale proposed pursuant to this Section 2.4 includes any securities, and the receipt thereof by a Stockholder would require under applicable law (a) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (b) the provision to any Stockholder of any information regarding the Company, such securities or the issuer thereof, such Stockholder shall not have the right to sell shares of Common Stock and Common Stock Equivalents in such proposed Company Sale. In such event, the Take Along Group shall have the right, but not the obligation, to cause to be paid to such Stockholder in lieu thereof, against surrender of the Common Stock Equivalents which would have otherwise been included in the Company Sale, an amount in cash equal to the Fair Market Value of such Common Stock Equivalents as of the date such securities would have been issued in exchange for such Common Stock Equivalents." 2. Come Along. The following paragraph is added immediately following Section 2.5(d): "(e) In the event the consideration to be paid in exchange for shares of Common Stock in a Transfer proposed pursuant to this Section 2.5 includes any securities, and the receipt thereof by a Stockholder would require under applicable law (a) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (b) the provision to any Stockholder of any information regarding the Company, such securities or the issuer thereof, such Stockholder shall not have the right to transfer shares of Common Stock in such proposed Transfer. In such event, the Transferors shall have the right, but not the obligation, to cause to be paid to such Stockholder in lieu thereof, against surrender of the shares of Common Stock which would have otherwise been transferred by such Stockholder in the proposed Transfer, an amount in cash equal to the Fair Market Value of such shares of Common Stock as of the date such securities would have been issued in exchange for such shares of Common Stock." 3. Rights of Participation. Section 2.7(a) is amended and restated as follows: "(a) Rights of Participation. The Company hereby grants: (i) to each Stockholder so long as it shall own at least 5% of the Shares, (ii) to each Berkshire Stockholder so long as the Berkshire Stockholders collectively own at least 5% of the Shares, and (iii) to each WP Stockholder so long as the WP Stockholders collectively own at least 5% of the Shares, the right to purchase up to a pro rata portion of New Securities (as defined in paragraph (b) below) which the Company, from time to time, proposes to sell or issue following the date hereof. For purposes of this Section 2.7(a), a Stockholder's pro rata portion, for purposes of this Section 2.7, is the product of (i) a fraction, the numerator of which is the number of outstanding Shares which such Stockholder then owns (on a fully diluted basis after giving effect to the exercise of all Rollover Options, if any, and the conversion of all securities convertible into or exchangeable for Common Stock) and the denominator of which is the total number of such Shares held by all Stockholders (on a fully diluted basis after giving effect to the exercise of all Rollover Options, if any and the conversion of all securities convertible into or exchangeable for Common Stock), multiplied by (ii) the number of New Securities the Company proposes to sell or issue. Notwithstanding the foregoing, in the event that the participation by any Stockholder in a sale by the Company of New Securities would require under applicable law (i) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities or (ii) the provision to any Stockholder of any information regarding the Company or such securities, such Stockholder shall not have the right to purchase New Securities pursuant to this Section, unless otherwise authorized by the Board. Without limiting the generality of the foregoing, it is understood and agreed that the Company shall not be under any obligation to effect a registration of such securities under the 1933 Act or similar state statutes." 4. Miscellaneous. Except to the extent specifically amended by this Amendment No. 2, the Stockholders Agreement as currently in effect shall remain unmodified, and the Stockholders Agreement, as amended hereby is confirmed as being in full force and effect. This Amendment shall be governed by the laws of the State of New York (regardless of the laws that might otherwise govern under applicable New York principles of conflicts of law) as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. This Amendment may be executed in two or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. This Amendment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. [The remainder of this page is intentionally left blank.] Amendment No. 2 to Stockholders Agreement IN WITNESS WHEREOF, the undersigned, representing the Company and a majority of each of the Berkshire Stockholders, the WP Stockholders, the Management Stockholders and the Other Stockholders have caused this Amendment No. 2 to the Stockholders Agreement to be duly executed as of the day and year first above written. THE COMPANY: AAH HOLDINGS CORPORATION By: /s/ James Harrison ------------------ Name: James Harrison Title: President Amendment No. 2 to Stockholders Agreement BERKSHIRE STOCKHOLDERS: BERKSHIRE FUND V, LIMITED PARTNERSHIP By: /s/ Robert J. Small ------------------- Name: Robert J. Small Title: Managing Director BERKSHIRE FUND VI, LIMITED PARTNERSHIP By: /s/ Robert J. Small ------------------- Name: Robert J. Small Title: Managing Director BERKSHIRE INVESTORS LLC By: /s/ Robert J. Small ------------------- Name: Robert J. Small Title: Managing Director Amendment No. 2 to Stockholders Agreement WP STOCKHOLDERS: WESTON PRESIDIO CAPITAL IV, L.P. By: Weston Presidio Capital Management IV, LLC, its general partner By: /s/ Kevin M. Hayes ------------------ Name: Kevin M. Hayes Title: Member WPC ENTREPRENEUR FUND II, L.P. By: Weston Presidio Capital Management IV, LLC, its general partner By: /s/ Kevin M. Hayes Name: Kevin M. Hayes Title: Member Amendment No. 2 to Stockholders Agreement OTHER STOCKHOLDERS: /s/ Jordan Kanh --------------- Jordan Kahn RGIP, LLC By: /s/ R. Bradford Malt -------------------- Name: R. Bradford Malt Title: Managing Member Amendment No. 2 to Stockholders Agreement MANAGEMENT STOCKHOLDERS: /s/ Gerald Rittenberg --------------------- Gerald Rittenberg /s/ James Harrison ------------------ James Harrison Paul Ansolabehere Sheldon Babyatsky Fred Berg Laura Bucci John Conlon Michael Correale Kerry Cusato Ken Danforth Margaret Davis Barbara Devos Dawn Dodge James Dotti Dorothy Dyer Willard Finch Rose Giagrande Marie Gransbury Howard Harding Randy Harris Deborah Hatley Sean Hersey Derek Itzla Paula Kochon Katherine A. Kurtz Scott Lametto Craig Leaf William Mark Jackie Mather Karen McKenzie Michael Mostrom Cindi Olsen James Plutt George Reichel Paul Rosenbaum Maria Rubeo Christine Sacramone Susan Scott David Sherman Mark Sifferlin MaryLynn Slusher Diane D. Spaar Keith Spaar Greg Stack Eric Stollman Angela Stroh Walter Thompson Scott Van Reeth Patrick Venuti Joseph Walters Deborah Warren Craig Wiechman Robert Yedowitz /s/ James Harrison ------------------ By: James Harrison, the attorney-in-fact for each of the Stockholders listed above, in his capacity as Management Proxy pursuant to Section 4.1 of the Stockholders Agreement.